Almost two years ago, I posted about Justice Thomas's opinion encouraging more targeted challenges to New York's rent stabilization law. Yesterday, we filed a case responding to that call.

It's took a huge amount of work to get from there to here. Months and months talking to building owners to understand their situation; visiting apartment buildings to see the situation on the ground; reading the rent stabilization regulations cover-to-cover; doing a deep dive on the Supreme Court's takings jurisprudence over the last hundred years.

The result is a lawsuit that not only can win but should win--that presents the strongest possible challenge to a deeply irrational regime that is harming building owners and tenants alike.

https://x.com/FreeRangeLawyer/status/1760066820126498915

There are a few things that make our approach unique, but perhaps the biggest is that we narrowly focused our claims on New York's regulation of vacant apartments--apartments that are sitting vacant because the legal rent is so low it doesn't make sense to put them on the market.

For instance, Pashko and Tony Lulgjuraj own a building on the island of Manhattan that contains a two-bedroom apartment with legal rent set at about $700 per month. The apartment became vacant in 2019 after a long-term tenancy (the last tenant was in the apartment over 40 years). It's sat vacant ever since because it simply doesn't make sense for Pashko and Tony to rent out the apartment for $700/month.

Understand the economics here: After long-term tenancies, apartments require work to get them back onto the market. We're not talking about upgrading to luxury finishings. This is work that is required by law: things like dealing with lead paint, levelling out the floors in a hundred-year-old building, putting in new outlets to get electrical up to code. It costs tens of thousands of dollars to get an apartment on the market. And it makes no sense to put in that investment if you can't make it back in rent.

Pashko and Tony run a business, and their business is renting apartments. They want to rent all the apartments they own. But, thanks to rent stabilization, this unit has been regulated off the market.

Yikes. Two days after Andy Payan testified at a preliminary injunction hearing--challenging a major federal surveillance rule--the IRS sent an audit notice to his business. Andy's gas station is one of hundreds of businesses along the border that has been ordered to report cash transactions over just $200 to the federal government. It's an unprecedented financial surveillance program.

HUGE Fourth Amendment victory: Federal court grants preliminary injunction against financial surveillance program. Invokes the "rebellious idea that King George III should not be able to have his red-coated soldiers and agents rifle haphazardly through ... homes and businesses."
Here's the background: In 1974, the Supreme Court upheld a (then-new) law that forced banks to report over-$10,000 transactions to the federal government.

Three Justices dissented, and Powell and Blackmun concurred -- warning that more expanded surveillance might well violate the Fourth Amendment.

What I've been working on lately: Pasco County, FL, used a crude computer algorithm to "predict" who would commit future crimes--and then subjected their families to relentless harassment. They called it "Intelligence Led Policing."

This is Robert Jones, one of our clients. His son landed on Pasco's list when he was just sixteen years old.

Soon, the Pasco sheriff's office was visiting the family's home multiple times a week and at odd hours of the day, knocking on the doors, and peering into the windows. Deputies found excuses to issue fines for things like tall grass, and they found excuses to arrest Robert--arresting him three times in three months.

Robert had never been arrested before. But he was arrested the day after Christmas because officers claimed to see a minor smoking a cigarette through the windows of his home; was arrested a week later for failure to appear for a code citation hearing (even though he did not receive notice of the hearing); and was arrested several months later for alleged possession of marijuana. When Robert was arrested the third time, a deputy was captured on body-camera telling him, "We'll just continue on this shit, because you're messing around with an aggressive sheriff. Sheriff Nocco is not playing games, that's the bottom line." Not long after, Robert moved his family out of the county.

The FBI raided Jeni Pearson's safe deposit box and tried to take all the contents using civil forfeiture. Jeni fought back, along with other @IJ clients, and won...

Except, when the FBI returned the box contents, $2,000 was missing. So Jeni and @IJ sued again.

Yesterday, we got an important decision in our case seeking to recover Jeni's $2,000. Jeni's fight for her missing $2,000 is another chapter in the story of U.S. Private Vaults, a safe deposit box facility in Beverly Hills that the FBI raided in March 2021. @IJ challenged the raid, and, earlier this year, the Ninth Circuit held that the raid violated the Fourth Amendment.

https://x.com/FreeRangeLawyer/status/1732134813715353913?s=20

Justice Thomas put out an important message on today's Supreme Court orders list. For those who are paying attention, the opinion may mark the beginning of the end for the nation's rent control laws.

On some level, the opinion is a nothingburger. The Supreme Court denied a petition for certiorari, which is par for the course. Most cert petitions get denied.* This particular cert petition was a constitutional challenge to New York's rent control laws.

But this cert denial came with an explanation from Justice Thomas. And the explanation conveys important information about the Court's thinking. (Take it with a grain of salt - Justice Thomas is ultimately speaking just for himself. But we have no reason to think he would want to mislead anybody on this score.)

Specifically, Justice Thomas says that the constitutionality of rent control meets the standard for cert. It is an "important and pressing question," and it's also one on which "the Courts of Appeals have taken different approaches." That's game, set, match. In other words, this issue is ripe for Supreme Court review.

*Note for nonlawyers: A cert petition is a request for the Supreme Court to hear and decide a case. Unlike most courts, the Supreme Court gets to decide what cases it wants to decide. The Court only grants cert in cases where it thinks there's an important question that merits its attention. Justice Thomas says this particular case wasn't granted because the petitioners didn't do a good enough job framing the issues. (Note he uses the word "our," signaling this isn't just his idiosyncratic view.) He says it wasn't clear exactly what regulations were at issue, who they affected, or how. But that's something that's easily fixed in a future case.

Okay, tomorrow is here, so, as promised, I'm going to offer thoughts on the decision. First the substance of the decision, then some thoughts on what happens next.

(I have meetings coming up, so if I get interrupted mid-thread may pick this up again this evening.)

https://twitter.com/FreeRangeLawyer/status/1749911997104136292

The decision has three parts, and each part has important implications for the Fourth Amendment.

First : All three judges on the panel agree that the search was not a valid "inventory" because it did not follow standardized procedures.

Remember that the government's theory was that it was allowed to break open hundreds of safe deposit boxes without any probable cause because--having taken possession of the vault itself--it necessarily had to "inventory" the contents of the boxes. There are a lot of reasons that doesn't make sense, and the panel here picked up on what is basically the easiest and most straightforward way through the argument.

The Supreme Court has upheld "inventory" searches in situations where law enforcement is applying routine, standard procedures. Every time they seize a car, they "inventory" it the same way. Same thing with every person they book into jail.

By contrast, the search here wasn't a standard inventory. In fact, it was unprecedented! There was no routine policy for inventorying safe deposit boxes, and instead the government just made up procedures to follow in this case.

So why does this matter? It matters because it confines the "inventory" exception to a narrow set of situations where the government has established, routine procedures to regularly inventory property. That puts a significant barrier in front of the government if it wants to expand the inventory doctrine to new types of searches.

This part of the opinion also includes my favorite paragraph, where the panel notes that the government's contrary arguments could allow the inventory doctrine to expand to encompass the "very abuses of power ... that led adoption of the Fourth Amendment in the first place."

There is a fascinating lawsuit currently pending in district court, challenging a regulation that will impact tens of millions of small businesses across the country. The case has not gotten nearly enough attention.

The regulation imposes new reporting requirements on over 36 million corporations/LLCs nationwide. Small businesses everywhere will have to file reports with FinCEN---an intelligence agency located within the Department of Treasury--disclosing information about who owns the business. Failure to comply triggers penalties up to $10,000 or two years in jail.

Ownership is defined broadly. Anyone who "exercises substantial control" over the business counts as a "beneficial owner" and has to be disclosed.
The effect of the regulation is to create a new database that can be mined by law enforcement for information about small businesses.

And we really are talking about small businesses. The regulation exempts publicly traded corporations, as well as businesses with more than 20 employees or more than $5 million in gross receipts. This is a rule targeted directly at small businesses.

In addition to identifying "beneficial owners," companies will be required to provide detailed information on names, addresses, birthdays, and other identifying info.

Update about this case: Still no decision, but it has been a big month in other ways. And the government has gotten up to some interesting hijinks. I'll explain.

For starters, oral argument was fantastic. The judges called the government's conduct "egregious" and "outrageous." One of the judges even compared the FBI's search to the kinds of broad, general searches that sparked the Revolutionary War. It should go without saying, but the FBI and the DOJ typically don't like being compared to King George.

So the government does something interesting: It files one of the more peculiar filings I've ever seen, which my colleague described as a "Motion to Lose Without Published Opinion." The basic gist is that the government now supports a court order to provide our clients "the maximum remedy available." The government doesn't actually admit that it violated the Fourth Amendment, but it says we should win.

Tomorrow, I'm flying to Los Angeles for oral argument in what may be the most important Fourth Amendment case pending in the United States today. The basic facts: The FBI broke open and searched hundreds of safe deposit boxes without any reason to think the boxholders did anything wrong.

U.S. Private Vaults, a business in Beverly Hills, offered a private and secure place where people could store their most valued, sensitive possessions. In March 2021, the FBI raided USPV, broke open every single box in the vault, and looked through all the contents. The FBI ran all cash in the vault by drug dogs, opened envelopes and photographed the contents, and ultimately sent everything worth over $5,000 to asset forfeiture---initiating proceedings to keep that property forever. The FBI did all that pursuant to a warrant, but, critically, the warrant specifically said that it did not "authorize a criminal search or seizure of the safety deposit boxes." That was an important limitation: The FBI had reason to think that USPV, the business, had violated the law, but the FBI had no basis for any individualized probable cause as to any of the boxholders.

This is a big deal: New York City has entered a settlement resolving @IJ's challenge to the NYPD's "nuisance" eviction program--or what I like to call the City's no-fault eviction program.

And the settlement is nothing short of a complete and utter capitulation by the City. I would love to take credit for the settlement, but I can't. I haven't touched the case for the last two years, and my colleague Sam Gedge has been leading up the charge since then. All the applause goes to him and his team.

BUT, that being said, I helped file the case and ...

So, here's some nice Friday news: The government has been ordered to respond to @IJ cert petition seeking to revive the Privileges or Immunities Clause! @IJ filed the case on behalf of Jim and Cliff Courtney, who live and operate businesses in a town on Lake Chelan (in Washington) accessible only by boat or chartered plane. The Courtneys want to transport people to the town by boat, but can't without a license.

Did an event with @josh_hammer earlier today at Indiana University, and, since I took the time to read and respond to his article on "Common Good Originalism," I may as well tweet out some of the thoughts I shared at the event. Here's Josh's article. americanmind.org/features/waiti…

One of my pet theories is that--contrary to popular wisdom--you can actually learn a lot about Supreme Court Justices by reading their opening remarks at their confirmation hearings. Justice Ginsburg, for instance, invoked a long history of advocates who have worked to perfect our constitutional order. And then she sketched out a role for Justices--impartial, "without fanfare," "impartial"--but also to advance justice "by slow advances."

So, today's @nytimes included an entire section devoted to an annotated reprint of a 1970 Milton Friedman essay. (!!!) The whole thing was thought-provoking and really well-executed. A few reactions. First, it's mind-blowing that the NYT published this essay back in 1970, and it shows how much the paper has changed in 50 years. That's in part for ideological reasons, but it's also just because the essay is really *long.* Bring back long-form essays!

Anyone gets closer than six feet, stick them with something pointy.

https://twitter.com/Clipart1994bot/status/1260150500072308737

This one is too on point.

https://twitter.com/Clipart1994bot/status/1260075005607645185?s=20

Cleveland, I love you. I really do. But can you cut it with the snow in May? “It’s just a flurry. It isn’t sticking.” Those are not excuses. Maybe in April, sure, but this is May.

Timbs!!

Congrats to @IJ and @thehottot on a well-deserved victory! When you see Justice Ginsburg citing Justice Scalia and the ACLU in the same breath, you know you've hit on something that's indisputably true.

When a 12 year old falls off a bridge in what might-or-might-not be a suicide attempt, publishing a gawky speculative article about the accident (with a banner headline no less) seems ... I dunno ... irresponsible? Kind of like rubbernecking? Say it was a suicide attempt. What’s the point of poking at somebody with mental health issues in that way?

Very nice thread about AMK.

https://twitter.com/sheldongilbert/status/1012056323989663745

My favorite thing about clerking with AMK was the broad range of his interests. At my interview, when he learned I studied anthropology in undergrad, he recommended that I read an obscure collection of essays on the blending of British and Indian culture. amazon.com/Way-We-Were-An…

I was clerking at #SCOTUS when Knox v. SEIU petition was granted -- exactly seven years ago today. And wow. Here's the cert petition that started everything: sblog.s3.amazonaws.com/wp-content/upl…